UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
December 29, 1944
LEO FEIST, INC., ET AL.,
SONG PARODIES, INC., ET AL.; ROBBINS MUSIC CORPORATION V. SAME.
Consolidated Appeals from the District Court of the United States for the Southern District of New York.
Before CHASE, CLARK, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
These are actions in which jurisdiction is based solely on the federal copyright statute, for there is lock of diversity of citizenship. The District Court held that defendants had flagrantly infringed the plaintiffs' copyrights of certain songs. The evidence fully supports that court's findings of fact which in turn justify its legal conclusions, unless there is merit to defendants' contention that an earlier suit brought by plaintiffs against defendants in the New York Supreme Court, for unfair competition in connection with the sale of the very songs involved in the actions here, which terminated in a judgment dismissing the complaint on the merits, is now res judicata.*fn1 We think not.The opinion in the State court suit makes it clear that the plaintiffs there limited their action to one for unfair competition in the use of the titles to plaintiffs' songs; accordingly [under the doctrine of Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83, approved in Reeves v. Beardall, 316 U.S. 283, 285, 62 S. Ct. 1085, 86 L. Ed. 1478], the claim there and that here are "entirely distinct." It is perhaps arguable that the adjudicative effect of the judgment is to be measured by the scope of the plaintiffs' pleadings and not by the manner in which they limited their claim subsequently in argument to the State court, and that the pleadings in the State court suit were not restricted to a claim for unfair competition in the use merely of the titles to plaintiffs' songs. But we need not consider that question: Since an action for infringement of copyrights could not have been maintained in the State court, the judgment in the unfair competition suit is not, in and of itself, a bar to the copyright suit; even if the facts were such that the plaintiffs could originally have joined in a federal court suit a nonfederal claim for unfair competition with a federal claim under the copyright statute,*fn2 the plaintiffs cannot be said to have elected to abandon the latter claim merely by bringing the State court suit.
Of course, if, in the earlier action, the court had made a finding, adverse to plaintiffs, of a fact essential to support a judgment in the copyright action, such a finding would bar the latter action.*fn3 But the State court made no such finding; it rested its decision on the finding that purchasers would not be misled, a fact unimportant in the copyright action; it did not make any finding on the facts essential to plaifntiffs' success in the actions here.
CLARK, Circuit Judge.
I concur in the result.